News, Developments and Opinions from XXXLAW.COM

January 10, 2014 Update

Joe Obenberger will be speaking as part of the legal panel at the
AVN Online Show, Internext on Monday, January 13, 2014 at the Hard Rock
Hotel in Las Vegas. The topic will be emerging legal issues of
importance to adult webmasters and content producers in 2014, based on
the develpments that came out of the couthouses, state legislatures,
and Congress in 2013. More details here.

Germain
to the same issue is a new article posted today in which we assess
2013's most important legal stories. Our choice - and predictions - are
likely to surprise you. Read it here.

August 1, 2013 Update

This website, XXXLAW.COM, went live just a year ago. It had
humble
origins, replacing xxxlaw.net which had been online since 2001, my
first effort at diffusing information about the law of adult online
expression to an audience composed of both Industry professionals and
the general public. In line with my aim to spread the values of
toleration and liberty of expression, I was careful to put nothing in
my sites that would be unsuitable for any student of any age involved
in research or deabte about the cornerstone American values entailed in
protecting this kind of expression from any kind of censorship. But
none of its important information was watered down at all. Every case,
statute, and regulation on which lawful operation depends was published
here together with articles that made at least some sense of how they
fit together.

We've come a long way and this inauspicious
website, XXXLAW.COM, now enjoys top Google rankings in all the searches
that best describe what we are about - together with another site we've
run for a long time, adultinternetlaw.com.
Let me share some of them with you.

And,
of course, we are delighted to place so well - so that the enormous
resources of this site are easily known to those who are looking for
what we offer. These, and many other top-listings in Google have come
honestly by many months of hard work: we've never paid Google or anyone
else for search engine advertising or placement. And whatever poor
excuse for SEO exists in these pages is entirely the fault of your
author who read some books, looked around, and did it himself.

July 25, 2013 Update

Judge
Baylson Finds Section 2257 Constitutional Exercise of Government Power

What would Benjamin Franklin
think?

Photo
by Joe Obenberger at the Franklin Memorial, Philadelphia

One week ago today, on July 18, 2013, our suspense regarding
The
Free Speech Coalition's lawsuit challenging Section 2257 in
Philadelphia came to an end when Judge Baylson issued his post-trial Memorandum
finding facts and applying the law, essentially his trial
verdict.
Aside from a minor concession about those sexually-explicit content
producers who maintain the mandatory records in their homes (he
determined that, contrary to the Regulations, they are entitled to
prior notice before the FBI conducts its inspections of those records)
he rejected every argument advanced by the FSC, determining the Section
2257 scheme to be a constitutionally-valid exercise of government power
for the protection of children. He determined the evidence to be
insufficient - inadequate - to establish that any sexually-explicit
video and pictures are created by private, noncommercial persons and
are kept in their homes. Honest.
I am not making this up.
This is what Judge Baylson concluded after hearing the testimony of two
expert witnesses who offered abundant, authoritative evidence about
sexting. In order to to arrive at this conclusion, he pretended that
the expression, "sexually explicit" is not a well-understood expression
in contemporary English and that specific descriptions of what was
depicted in sexts needed to be identified to establish that Section
2257 applied to sexts. Again,
really. Honest. This is what he says at Page 53 of the Slip
Memorandum.
I believe that he came to this conclusion only by imposing an
artificially high burden of proof on the FSC and by disregarding the
plain and ordinary meaning of the expression "sexually explicit". In
order to conclude that Section 2257 does NOT directly invade the
privacy of tens of millions of American bedrooms, it was necessary for
him to find some way to disregard the plain facts, the actual situation
on the ground as it was presented to him, and that's how he handled it.
He handled the other well-grounded arguments of the FSC with very
curious findings of law, some of which may be unique in the annals of
American consitutional jurisprudence. In sending this case
back to
Judge Balyson after he first dismissed the entire suit, the judges of
the Third Circuit directed him to receive evidence about the
substantiality of Section 2257's sweep into those American bedrooms -
and if that evidence was indeed substantial, the invasion of Americans'
privacy promised to uproot the statute entirely - as the Third Circuit
implied. I've written at length about the tactics which, in my opinion,
Judge Balyson used to take the rights of ordinary Americans off the
table of this case. That piece has run on xibiz.com since last weekend
and will appear in the next print edition of XBIZ World. An adaptation
of my article for this site appears here.

You will find an abundant collection of documents and audio
recordings documenting that case here.

No, a photograph in not just a two-dimensional depiction of reality
made by light. If you put on your legal glasses, you'll see eight or
more dimensions - and each of them presents a risk of civil damages, a
risk that the image will have to be taken down, or in the worst case, a
risk of federal or state prison. This new article
provides lenses to give producers and publishers the real perspective.

April 10, 2013 Update

Two new articles
added to this site, both of which were written for XBIZ World and
adapted for use here: The Future
of Obscenity Prosecution
was written in reply to a question about where I think obscenity law
will be in ten years. Feel free to disagree, but I call it as
I
see it. What
You Need to Know About Nondisclosure Agreements in the Adult Internet
is a less speculative piece. NDAs are remarkably flexible, strong tools
to
protect mission-critical, sensitive information, procedures, and
protocols. They can and should be adapted to a wide array of
situations - but they must be entered into at the right time, cover
what is legitimately sensitive for a reasonable period of
time, and their protections can be lost by your conduct in relation to
the sensitive matter. This is not for amateurs.

On
April 5, 2013, I spoke at the Phoenix Forum legal panel and presented
on the topic of the five most critical mistakes made in the adult
internet which are the easiest to avoid. An article summarizing that
talk is in the works.

At this time, the Free Speech Coalition's
lawsuit challenging Section 2257 is very much alive. Depositions of
parties and witnesses are proceeding now, quietly, in conference rooms.
Trial is set for early June, though that may change as time goes on.
All of the significant briefs, opinions, and orders (and even audio of
the oral argument in the Third Circuit) in the case are
available
on this site at
http://www.xxxlaw.com/section-2257/index.html.

February 21, 2013 Update

New Article
added to our collection: Vacation Plans Terminated Early:
Some Background on Arrests by Stealth at the Airport and the US Travel
Plans You'll NeverForget.
When you arrive on US soil, even in the International zones of US
airports, you become vulnerable to arrest under American law; Federal
prosecutors here have secured arrest warrants in anticipation of
executing them by arrest long in advance of the defendant's presence in
the United States. When this has happened in several reported
cases, the traveler was taken by complete surprise. In at least one
case, such a person was held without charges as a "material witness"
for four months. The scope of intrusive searches of property,
including computers, may surprise you.

Judge Baylson has released his Memorandum,
essentially akin to an Opinion of a higher court, articulating the
reasons for his November 26 Order from the bench denying the Department
of Justice's motion to dismiss all of the 4th Amendment privacy claims
from the Free Speech Coaltion's lawsuit in Philadelphia, which argues
that the Section 2257 scheme is unconstitutional.

November 26, 2012 Update - DOJ's Motion for
Partial Dismissal DENIED!

UPDATE
- During the afternoon of November 26, 2012, XBIZ is reporting
that, earlier today, Judge Baylson DENIED the government's motion for
partial dismissal of Free Speech Coalitions's Section 2257 case in
Philadelphia relating to the Privacy/Fourth Amendment
complaints, ruling that it is the law itself that is on trial, not what
the Government says about its plans or what it says about its
capability to enforce the law. Having so ruled, the Government's sneaky
ruse seems to have failed. Now, the only thing standing between the
adult community and renewed inspections may be the only the
Government's own fear that the scheme is - in fact - unconstitutional -
and that it leaves its Agents open to some possibility of civil
liability for the inspections if the courts ultimtely so determine. - JD

We are pleased to
announce that a new XXXLAW
Law Bulletin has been relased to our mailing list and that
its transmission has started but is not completed.

It includes three all-original, new articles. The first is the
full
edition of the article appearing in the December, 2012 edition of XBIZ
World, mentioned below about the impending November 26 hearing in the
FSC Philadelphi case, addressing the Department of Jusice's pending
motion to dismiss in part - a motion to strip away all of FSC's claims
that the statute is unconstitutional because the inspections violate
the right to privacy . This statute, as construed by the Third Circuit,
and as admitted by DOJ's advocate in open court last January, will
apply even to the most intimate of videos made on cell phone cameras,
and will apply with all its force and vigor, the moment it "leaves the
front door". And if it was made outside the home, in a motel, in a park
or at the beach? Apparently the appointed inspectors can demand to see
that video in your home without a warrant, and refusal to admit them,
to make the video available to them, or to make records and affix a
Compliance Statement, will subject you to five years in prison. All
without a warrant, just a knock on the door that can come at any time,
even in the middle of the night if you are working with the video. It's
outrageously offensive to every notion of Liberty and no good aim or
purpose justifies that. It is to avoid creating such uncomfortable fact
patterns that DOJ suspended inspections, and this article links to the
affidavit of the FBI Agent who states that no inspections are now
funded. One guess why, while this privacy issue is on the table in
court. And they at DOJ want the privacy issue gone. The article
contains links to Acrobat copies of all the pleadings in the case.

The
second article was written for AVN's December print edition and details
my belief that the "DO NOT SHIP" lists used by many - but not all
online DVD merchants are just an expensive waste that protect no one.
It's called "Do Do Not Ship Lists Do Any Good?" When prosecutors want
to nail a producer, they invariably pick a jurisdiction not on the list
to set up a sting. Small towns in Oregon, Huntington Beach, California,
Los Angeles, Tampa, and others. And some of the states on the lists -
served by retailers who don't use such lists, have not seen a sting
mailing prosecution in decades.

The third article is a practical,
hands-on piece about how to check model/performer ID - with links to
inexpensive UV Loupes that can verify mictroprinting and an
authoritative handbook that provides information for federal, state and
provincial ID, identification documents.

The Bulletin
includes links to follow our Twitter announcements of fast-breaking
legal news that affects the adult publishing community and the adult
entertainment world more broadly - and to our Facebook Page.

This
is our first use of a new mailing protocol and we are working out the
glitches as we learn about them. They are going out in batches. Expect
that the whole list will be delivered copies of the Bulletin by this
weekend.

November 18, 2012 Update - Now We Know Why
They Stopped the Section 2257 Inspections!

November 6, 2012 Update - New Article in
XBIZ

Published today in XBIZ is my article about the critical
hearing to be
held on November 26 in Philadelphia in the Section 2257 lawsuit - it
will decide whether the challenge to 2257 on right-to-privacy grounds
- Fourth Amendment challenges arising from the prospect of inspections
- will continue or be dismissed by the trial judge. I think that he
will be influenced by the way the Third Circuit, sitting above him,
looked at the issue of who is affected by this law - ordinary people
who make explicit videos on their cell phones, and not just
pornographers. I believe that he will deny the Government's motion to
dismiss the privacy counts.

October 29, 2012 Update

October 27, 2012 Update

It took a Johnson County, Kansas Grand Jury all day to figure
out that a fairly cubist statue
of a nude or partially nude hiker girl
taking a picture of herself isn't obscene - and to me, the real news is
that it took all day to reach that conclusion. Here's the story and
what I had to say about it.

It took them all day
to come to the conclusion that this highly stylized work that suggests
vanity and narcissism, self-adultation and self-worship - which is
after all the root of all of the problems that' have plagued humanity
from
the start - possesses serious artistic value? (And the absence of that
"serious value" is one of the three things that must be proven to
render any work obscene. No matter how prurient the appeal of the work,
no matter how shockingly and patently the work offends contemporary
community norms of what is permissible or accepted, IF it possesses
serious artistic value, it cannot be obscene. Why? Because our Patriot
forefathers correctly came to the judgment that all of society itself
would become the victim - if any expression that adds to the debate
about the basic questions about humanity - could be outlawed,
criminalized, and taken out of society's view. That's a distinctively
American value, what we invented, and what sets us apart from the rest
of the world. Remember, it was a Statue of Liberty our immigrant
ancestors looked up to when they arrived in New York harbor, not a
Statue of "Decency".) One hundred and fifty years
ago, my Great Grandfather, then 16, was
fighting insurgents all through Kansas in the Civil War, and forty
years ago, I left 30 pounds behind as I trained to become an Army
officer at Fort Riley. I'd like to think that we, and all of the others
who've served in the military to protect American values, were
fighting/serving
for exactly this same right of every American to freely express and
communicate their point of view through any means that can affect
minds. Bravo to the Grand Jury. It's only tragic that the decision was
not obvious to them in ten minutes. Read all about what obscenity
is and is not here: http://www.xxxlaw.com/obscenity/index.html

Joe Obenberger

October 23, 2012 Update - Horrible Decision from
the NY Court
of Appeals - New York's Supreme Court - Split 4-3 Decision Allows the
State to Discriminate Against Erotic Dancing in Taxation and Tax It
While Permitting "Legitimate" Dancing to Get Amusement Tax Exemption.

Today,
New York joins Illinois in decreeing that the state may make asthetic
choices favoring "legitimate" dancing over erotic dance.

At issue
was an exemption from amusement tax laws that favor live performances.
The Tax Man took the position that nobody in the legislature really
intende to give this
kind of live performance a tax break.

In this awful case, the investigators didn't even bother to
look into
what takes place in private dances - the court upheld their guesses,
dressed up as "opinions" as to what they never saw. The court, of
course, did not have the testicularity to come right out and put it's
judicial good-housekeeping seal on the discrimination against erotic
dance - they pinned it on the absence of evidence of "choreography".
So, a jazz or blues number that comes out of a spontaneous jam could be
disfavored in comparision with a performance of music from a sheet, I
guess. A sheet? Sh*t! (For the record, there is no industry-accepted
form of notation for choreography, anyway.) Reed the decision and weep
at it here.
(In the Matter of 677
New Loudon v. State of New York Board of Tax Appeals,
October 23, 2012.) The Dissent noted that pole work is hard and
requires much preparation, skill, and cannot be easily dismissed as
less worthy an endeavor than what the Do-Gooders call legitimate art.
To its credit, the three-justice dissent called a spade a spade and
noted that there IS NOT A WORD about choreography in the tax statute
and that the Tax Man was making up this distinction out of thin air.
The Dissent properly noted "Like the majority and the Tribunal, I find
this particular form of dance unedifying -- indeed, I am stuffy enough
to find it distasteful. Perhaps for similar reasons, I do not read
Hustler magazine; I would rather read the New Yorker. I would be
appalled, however, if the State were to exact from Hustler a tax that
the New Yorker did not have to pay, on the ground that what appears in
Hustler is insufficiently "cultural and artistic." That sort of
discrimination on the basis of content would surely be unconstitutional
(see Arkansas Writers' Project, Inc. v Ragland, 481 US 221, 229-230
[1987]). It is not clear to me why the discrimination that the majority
approves inthis case stands on any firmer constitutional footing. "
Slip Opinion at 4, Dissent of Smith.

Illinois reached the same unfortunate result three years ago
in the Pooh
Bah case. It used different reasoning in reaching that same
result.

It's
just not the role of government to distinguish what is and what is not
"art" and it is not the proper rolle of courts to legitimate a top-down
government government role in the development of culture. That's what
equal protection of the laws means in the end.

April 28, 2012 Update - How Would this honest tag
affect the sale and use of devices with digital cameras? How might it
create pressure in Congress to do something about Section 2257?

On April 16, 2012, a panel of three judges of the US Third
Circuit Court of Appeals reversed
the District Court's orders dismissing the Free Speech Coalition's case
in Philadelphia, which challenges the constitutionality of Section
2257. There will be much more to say about this case.

Now
the case goes back to the District Court in Philadelphia. There, FSC
will be entitled to amend its complaint to reflect its legal theories
and it will be entitled to take discovery, including depostitions,
about the methodology and limited effectiveness of Section 2257, its
over-reach, and about its invasion of personal privacy. Exciting things
may happen.

DOJ may request re-hearing en banc,
before all of the judges of the Third Circuit Court of Appeals in an
effort to avoid this
development. In theory, either side may
request
rehearing en banc, because, with respect to some issues, the District
Court was
affirmed.

The ruling is limited to First
Amendment Free Speech and Fourth Amendment privacy issues. The Appeals
Court will give FSC a chance to discover and demonstrate facts tending
to show that the statutory/regulatory scheme is "substantially
overbroad" and unconstitutional under Intermediate Tier Scrutiny, amend
its Complaint, and discover and demonstrate facts tending to show that
inspections of records, especially in the home office of some
producers, violates their 4th Amendment privacy rights.

A quite
interesting development was the Court's determination that this scheme
must necessarily apply to ALL explicit video production, not just to
images made for the purposes of commerce or trade. You will recall that
when the first three-judge panel of the Sixth Circuit, in the
Connections Case, found
the statute to be unconstitutional,
they did so largely because it invaded the privacy of the home and and
applied to the most intimate videos made by couples. DOJ then issued
new Regulations and commentary in December 2008, with a preamble that
said the scheme applied only to material intended for commerce or
trade. Then, the en banc panel of all of the judges of the Third
Circuit reversed and upheld the
statute's constitutionality.
(Though they made no explicit mention of this preamble or the statement
just cited.) The en banc panel questioned whether making such a video
was a widespread enough phenomenon to be constitutionally significant.
Similarly, the trial judge in Philadelphia doubted that this was an
important enough matter to base a decision upon. When the Philadelphia
case went to oral argument, the DOJ advocate undermined the integrity
of the preamble's apparent language by casually noting that when the
video left the private couple's front door, at that point, it was
subject to regulation. But this panel of the Third Circuit is simply
not buying the disengenuously-shifting
position of DOJ. It squarely holds that Section 2257 is intended to
regulate ALL explicit productions, and that its constitutionality must
be judged on that basis. This is quite encouraging.

On April 25, 2012, we filed our
official Comments
with the CEOS, the unit in the Department of Justice responsible for
writing and enforcing the regulations which implement Section 2257. But
we did a bit more.

Invoking an obscure and perhaps never-earlier-used provision
of
federal law, Title 44 United States Code Section 3508, I've demanded a
formal hearing on the action in the Office of Management and Budget.
The OMB provides oversight over administrative agencies to insure the
intent of Congress in the Paperwork Reduction Act of 1995 is complied
with. This law was passed by Congress with the intent of keeping The
Regulators at bay and has a stated congressional intention of reducing
the burden on the public. Every administrative regulation must be
assessed for the cost of information collection when it is promulgated,
and periodically each must be reviewed for its cost. It's often
routine. My goal was to make this renewal anything but routine.

As I've reported before on these pages, the official
application of
DOJ to get the renewal of the Section 2257 regulations approved,
required an assessment of costs of compliance on the public and small
businesses. That assessment looked to me to be miles away from honest
and candid, but quite the opposite. I laid out my reasons here
previously. This time, I devoted 38 pages (with copious illustrations
of billboards and magazine advertising and Paparazzi images that are
all
within the obvious sweep of the regulations) to a frontal assault on
the uncounted costs of these regulations to society in general, to
private individuals, and to small businesses struggling in the adult
sphere. I called the estimate of 3 million images profoundly dishonest,
and I pointed out that though the law requires these submissions to be
"certified", the Attorney General pointedly refused of failed to
certify the wild guesses at the scope and cost of the burden - because
they are just not true.

DOJ says only 1,974 producers are covered by these
regulations.
That's rubbish and my response says so. A Google Search for Compliance
Statements yields 24 million hits. Those 1,974 folks must be really
busy if they are the only ones covered! In fact, the regulations now
cover any hot image taken on a cell phone by anyone that includes even
a fully clothed crotch. It imposes the same obligations to create and
maintain records on ordinary folks using their cell phones in the
bedroom that are applied to Hustler and Playboy.

Where DOJ says it can't possibly make any precise estimate of
the
costs of compliance, I ask why they don't walk down the hall and ask
the FBI.

I honestly don't know whether this will make any difference in
the end, and turn what should have been a routine renewal into anything
that is quite non-routine, but I gave it every effort to upset the
applecart, to tell the honest truth in the face of what looks to me
like the DOJ hiding the ball (or, worse, totally blind and ignorant
about the industry they are regulating and the effects of these
regulations on ordinary people outside this industry) and it just may
work to change things. I hope so.

They say it is better to light a single candle than to curse
the
darkness. I may have just lighted something more like a road flare.
Time will tell.

On April 16, 2012, a panel of three judges of the US Third
Circuit Court of Appeals reversed
the District Court's orders dismissing the Free Speech Coalition's case
in Philadelphia, which challenges the constitutionality of Section
2257. There will be much more to say about this case.

Now
the case goes back to the District Court in Philadelphia. There, FSC
will be entitled to amend its complaint to reflect its legal theories
and it will be entitled to take discovery, including depostitions,
about the methodology and limited effectiveness of Section 2257, its
over-reach, and about its invasion of personal privacy. Exciting things
may happen.

DOJ may request re-hearing en banc,
before all of the judges of the Third Circuit Court of Appeals in an
effort to avoid this
development. In theory, either side may
request
rehearing en banc, because, with respect to some issues, the District
Court was
affirmed.

The ruling is limited to First
Amendment Free Speech and Fourth Amendment privacy issues. The Appeals
Court will give FSC a chance to discover and demonstrate facts tending
to show that the statutory/regulatory scheme is "substantially
overbroad" and unconstitutional under Intermediate Tier Scrutiny, amend
its Complaint, and discover and demonstrate facts tending to show that
inspections of records, especially in the home office of some
producers, violates their 4th Amendment privacy rights.

A quite
interesting development was the Court's determination that this scheme
must necessarily apply to ALL explicit video production, not just to
images made for the purposes of commerce or trade. You will recall that
when the first three-judge panel of the Sixth Circuit, in the
Connections Case, found
the statute to be unconstitutional,
they did so largely because it invaded the privacy of the home and and
applied to the most intimate videos made by couples. DOJ then issued
new Regulations and commentary in December 2008, with a preamble that
said the scheme applied only to material intended for commerce or
trade. Then, the en banc panel of all of the judges of the Third
Circuit reversed and upheld the
statute's constitutionality.
(Though they made no explicit mention of this preamble or the statement
just cited.) The en banc panel questioned whether making such a video
was a widespread enough phenomenon to be constitutionally significant.
Similarly, the trial judge in Philadelphia doubted that this was an
important enough matter to base a decision upon. When the Philadelphia
case went to oral argument, the DOJ advocate undermined the integrity
of the preamble's apparent language by casually noting that when the
video left the private couple's front door, at that point, it was
subject to regulation. But this panel of the Third Circuit is simply
not buying the disengenuously-shifting
position of DOJ. It squarely holds that Section 2257 is intended to
regulate ALL explicit productions, and that its constitutionality must
be judged on that basis. This is quite encouraging.

We have prepared a petition
for you to cut and paste into an email to your Illinois State Senator,
opposing S.B. 3348, now pending in Springfield. A link to obtain the
email address of your State Senator is included. This Bill comes out of
a radical, anti-male, progressive "Feminist" agenda, from the same
folks who have been monkeying with the criminal code so that the
customers of prostitutes become Felons while the prostitutes themselves
are punished by a misdemeanor. Nuts. The Bill is a slap in the face to
every normal, healthy, well-adjusted guy in the state
who
likes women, associating patronage of strip joints with the
consequences of criminal,
violent, sexual assaults. The people who go to Gentlemens'
Clubs do so because they like
women; the criminals who assault women hate them. Not a very subtle
nuance, but apparently beyond the mental capacity of some of the
radicals and some state legislators. This comes at a time when,
according to the FBI, violent sexual assaults against women have been
on a steady decline since 1981 and, according also to the FBI, declined
by 4.9% between 2009 and 2010. The rate of violent sexual assaults has
not been so low in nearly fifty years. Federal and state grant money is
obviously declining, not only because of the economy, but because the
scope of the problem had diminished. This proposal sounds and smells
like a way to maintain some salaries and lifestyles, while at the same
time, funding lobbying for further changes in the law aimed at hurting
men under their radical feminist ideology. Please take the time to
write your State Senator.

April 11, 2012 Update - JDO Slated to Speak in
Miami

J. D. Obenberger has accepted an invitation to speak in Miami
Beach
on Wednesday, May 16 2012 at the XBIZ Summer Forum, Shelborne South
Beach, 1801 Collins Ave. at 4:00 p.m. The Legal Seminar is entitled,
"Condoms, Piracy, Obscenity, and Beyond".

March 25, 2012 Update - DOJ PUBLISHES CALL FOR
PUBLIC COMMENTS - TIME TO SOUND OUT.

Public Comments are open
regarding the public
burden of the record collection scheme in Section 2257. Check out this
article about why you should
write.

March 23, 2012 Update - New Article About
Backpeddling Santorum's War on Porn

New article
added. Santorum backpeddles from his campaign's committment to Fight
porn. That's NEWS. It's based on a question from XBIZ and melds what I
sent them with a post on GFY about the same.

March 6, 2012 Update

At the time of writing, Ira Isaacs, on trial in LA for
obscenity
because of scat films is awaiting the jury's verdict. He's issued an
amazing letter, an open letter, addressed to the adult world, to its
trade group, and to the industry's attorneys: Ira
Issaacs Letter.

He portrays himself as the martyr-confessor for the entire
adult
industry. Perhaps he is that. It contains much detail that has been
private knowledge to this point. It is certain that people will be
debating his contentions for a very long time.

March 5, 2012 Update

A page introducing everything contained in this website and
addressed to Newbies and other visitors has been published here: Welcome to
Beginners.

It offers a good look around this site and its resources that
is tailored to not only the Newbies, but first-time visitors to this
site.

February 22, 2012 Update.

J. D. Obenberger has been booked to present at the LAW 101
Seminar
at the Phonix Forum at 1pm on March 30, 2012. More details on our
Speaking
Engagements page.

February 10, 2012 Update - An audio
file of the Oral Argument in Free Speech Coalition v. Holder,
chalenging Section 2257, conducted before a panel of three judges of
that court has been posted.

July 8, 2010 Update

A table illustrating the currently effective DOJ Regulations
implementing 18 United States Code Section 2257 is found here: two-column
table.

John Stagliano's obscenity trial is underway in Washington
with opening statements expected July 12, 2010.

Two speaking engagements, one in Las Vegas regarding escort
advertising and the law, and another legal panel at The AVN Show 2010
in Hollywood, Florida have been booked. Times, dates, and registration
links are provided in the Speaking Engagements part of this site.

March 14, 2009 Update

Massive Changes in Section 2257 Regulations

We previously posted a redline two-column table illustrating
the amendments enacted by the DOJ that affect Section 2257 Compliance.
(See the December 19, 2009 Update, below.) They became law on January
20, 2009. We have transmitted to our clients an overview of the 23 most
significant changes. Each publisher of sexually explicit online content
is most seriously urged to consult with a knowledgeabe and experienced
attorney fully familiar with Section 2257. This site includes the
current text of the statutes and regulations - it also includes some
old articles about Section 2257 for historical value, but those old
articles, dated before 2009, DO NOT reflect the current state of the
law and should not be relied upon as reflections of the law now.

The following notes briefly highlight the very most
significant changes in the regulatory scheme, but they are not
comprehensive; in other words, these merely skim over dozens of
changes, any one of which, when violated, amounts to a federal felony
carrying with it a five year prison term for violation. These notes
merely summarize: They, themselves are not the law. The Statute and
Regulations must be consulted to assure compliance, and this is best
done with a legal professional.

DATE OF ORIGINAL PRODUCTION" DEFINED TO BE THE
DATE OF PHOTOGRAPY.
The "Date of Original Production" for Primary Producers is now the
first date of sexually explicit photography/videography. Producers are
now, for the first time, required to create and maintain a record of
that date. Primary Producers must also create a record of the first
date of actual photography/videography of any performer who turns 18
during the time of production and specially maintain a record of that
performer's first date of sexually explicit performance.

THE DATE OF ORIGINAL PRODUCTION MUST BE RECORDED
WHEN THE FIRST IDENTIFICATION DOCUMENT IS EXAMINED, BEFORE IMAGES ARE
CREATED.
Records must be created on the date of original production: The date of
original production must be recorded when the first ID document is
examined and copied. The identification documents must be examined
before production begins.

CONTENT OF SECTION 2257 COMPLIANCE STATEMENT:
FEWER DISCLOSURES REQUIRED: NEITHER THE DATE OF ORIGINAL PRODUCTION NOR
THE ACTUAL NAME OF THE CUSODIAN NEED BE SET OUT IN THE STATEMENT.
It is no longer necessary to disclose the Date of production in a
Section 2257 Disclosure Statement. Additionally, the name of the
individual who is the custodian of records is no longer necessary in
such a statement, merely his title. Clients should seek particular
guidance regarding rewriting their notices. Neither of these changes
affects the nature of records which must be maintained.

DISCLOSURE STATEMENT TO BE INCLUDED ON EVERY PAGE
OF A WEBSITE THAT INCLUDES SEXUALLY EXPLICIT DEPICTIONS.

RECORDS MAY BE MAINTAINED BY THIRD PARTIES.
Under the new changes, both Primary Producers and Secondary Producers
may discharge their obligation to maintain records and make them
available for inspection at the offices of an independent custodian. It
is my opinion, based on a close reading of the commentary and
regulations, that this obligation is not met when a Secondary Producer
merely points back to a Primary Producer's records, and that such a
practice amounts to a crime.

REDACTION OF RECORDS TRANSMITTED TO SECONDARY
PRODUCER.
Records maintained by a Secondary Producer may be redacted. However,
they may not be redacted to eliminate references necessary to show the
authenticity of the identification document nor to confirm the age of
the model on the date of production should doubt exist because of her
youth - accordingly, only sometimes is it necessary to render the full
date of birth, but it is always necessary to render the year of birth.

THE SCOPE OF SECTION 2257 IS LIMITED TO IMAGES
CREATED FOR COMMERCE OR TRADE.

IMPLEMENTED SECTION 2257A, WITH A SIMILIFIED
CERTIFICATION PROTOCOL FOR PRODUCERS OF SIMULATED SEX DEPICTIONS AND
IMAGES COVERED EXCLUSIVELY BECAUSE THEY DEPICT GENITALS OR PUBIC AREA
OR BECAUSE THEY ARE REGULATED BY THE FCC OR ARE DISTRIBUTED IN A MANNER
DISSIMILAR FROM CHILD PORNOGRAPHY, WHEN THE ENTITY REGULARLY MAINTAINS
EMPLOYMENT IDENTITY RECORDS.

We previously reported that, on October 23, 2007, a
three-member
panel of the Sixth Circuit sitting in Ohio invalidated
Section 2257 and its supporting regulations, determining
that they
violated the First Amendment. None of the judges saw the case quite the
same way, but two of them agreed that it was wholly unconstitutionally
and that they could not fix it by interpretation. The third judge, too,
who dissented from the determination of invalidity, agreed that serious
constitutional defects existed, but he felt that the court could fix
the statute by limiting it to commercial situations. (Even that
dissenter proposed excising out language applying to Secondary
Producers in the statute to save its constitutionality, thereby undoing
an important part of the Adam Walsh Act.) The others disagreed with the
dissenter for a variety of reasons, including a legislative history
that plainly shows that Congress intended to reach non-commercial
distribution , because that's where the bulk of child porn is made and
moved.

The Government sought and obtained review en banc, that is
from all of the judges appointed to the 6th Circuit, and on February
20, 2009, the 6th Circuit reversed the three-member panel,
affirming
the constitutionality of Section 2257's regulatory scheme. The only
place left to go now is the Supreme Court of the United States - and
the Connections team is sure to knock on that door. It's anyone's guess
as to whether the Supreme Court will take the case, but if it does, it
will be the first time that Section 2257 has been before the high court.

It seems obvious enough to this observer that the initial
decision of the three judge panel was the direct and immediate catalyst
causing the Government to take the position (in its new regulatory
amendments) that Section 2257 does not apply to images created without
an intent for sale, commerce, or trade, and because no commercial child
pornography exists within the United States, the Statute now cannot
meaningfully be said to relate very well to fixing the problem which
justifies its existence. That development may become the very undoing
of Section 2257.

December 19, 2008 Update

Yesterday, the Department of Justice published its amendments
to the Section 2257 Regulations in the final, declining days of the
Bush Administration. Ten pages of changes are accompanied by more than
150 pages of official commentary. This site will have a great deal to
say about the changes during the days ahead because the changes are
massive, but we are still assessing each change and its potential
consequences. For the time being, we are posting a
two-column table comparing and contrasting the existing
regulations with the changes which will swiftly become law.

December 3, 2008 Update

AVN Online has announced that it will host a one-hour version
of the J.D. OBENBERGER LEGAL WORKSHOP SEMINAR at 9:00 am, Tuesday,
January 13, 2009 at the Palms Casino Resort in connection with
Internext, the greatest online adult internet show in the world. This
will be his fifteenth speaking engagement at Internext and the fourth
time he has conducted this solo seminar on the law of obscenity, the
Section 2257 changes, Copyright, and the rights of models and
performers. Put your seatbelts on and prepare for a highspeed traverse
through all of the legal principles you need to understand to succeed
in 2009.

As you are certain to know, Max Hardcore and his distributor
were each convicted of ten obscenity offenses on June 15, in a Federal
prosecution in Tampa. (Mark Kernes wrote a series of high-quality daily
trial dispatches for AVN that can be read at
http://www.avn.com/video/articles/30477.html .) All of the charges
involved distribution because, at the time the video was created, there
was no federal statute criminalizing the production of obscene content.
There is one now; the federal offense of production of obscenity was
created in the Adam Walsh Act in 2006.

The indictment included counts concerning both physical mailed
delivery of five DVD's in two mail orders to a Tampa address and
Internet distribution of five short clips via maxhardcore.com,
including one, me20europromo.wmv, only 1:47 in duration. The government
did not allege that maxhardcore.com or any other website operated by
Max was an obscene work as a whole, but it charged individual clips
instead, continuing the pattern established by DOJ in the Extreme
Associates case. The DVD titles named in the indictment are “Max
Hardcore Extreme 20 – Euro Edition,” “Pure Max 19 – Euro Edition,” “Max
Hardcore Golden Guzzlers 7 – Euro Edition,” “Fists of Fury 4 – Euro
Edition” and “Planet Max 16 – Euro Edition. The content was described
to have included urination, fisting, vomiting, and hard anal . The
judge presiding in Max's trial was Susan C. Bucklew. You may remember
her as the judge in the Voyeurdorm case who determined the Voyeurdorm
studio location to violate Tampa's adult zoning ordinance, and you may
also remember that she was reversed in that case by the 11th Circuit on
non-First Amendment grounds. She is not the kind of judge who can
easily be accused of having any inclination to provide the defense any
favors in an obscenity case.

Among other arguments, Jeff Douglas of the Free Speech
Coalition unsuccessfully argued that, because the Max videos depicted
women in a politically incorrect manner, some manner of
socially-important commentary existed, adorning them with that kind of
serious value that constitutionally protects them against criminality
under the third fork of the Miller Test and the First Amendment. The
jury didn't buy it. Published accounts indicate that from the first
vote, the jurors stood 9-3 for conviction. Word from the backroom
suggests that the only point in which the dissenters disagreed with the
majority was whether Max should be convicted for the offenses arising
from distribution of the DVD's - not because of any doubt about
obscenity - they all agreed from the first poll that the material was
legally obscene - but because of doubt about his responsibility for the
manner in which orders were fulfilled. After hours of argument, the
three jurors favoring acquittal on any counts backed down and the jury
unanimously convicted. Beyond convicting Max and the distributor on all
counts, the verdict granted forfeiture to the government of three
domain names, including maxhardcore.com. This jury declined to forfeit
Max's house, but it is unclear to me whether the government may
continue its efforts to take his house through an independent action
for civil forfeiture – which was pending long before this indictment -
and get another bite at the apple.

The court apparently instructed the jury on local community
value instead of any special “Internet” or national community; the only
nexus specially connecting the Internet distribution to the Central
District was the location of Max's servers in the locale, a
circumstance that Max seems not to have known about. The record will be
full of issues preserved for appeal covering the spectrum, from the
nature of a "work as whole" in obscenity law to the identity of the
community whose standards are to control. Daniel Ruth, a Tampa
newspaper columnist, reported the next day that jurors had decided to
pursue a proposed book deal about the case. In the same category of
defense-suggested jury conduct issues, it appears that an Assistant US
Attorney made a crack in the elevator about all the porn - to a juror
who wasn't wearing a jury badge. Also, during deliberations, one of the
jurors, employed by a lawyer, got fired in a telephone call. Her
employer said it had nothing to do with jury service, but the juror,
who had the name of a lawyer she wanted to consult, wasn't so certain
and sent a note to the judge about the firing that wasn't disclosed
until after the verdict was in, and after the judge urged the jury to
come to verdict. The defense team feels passionately that the judge
erred to Max's prejudice, though it would seem that after the firing,
the horse was already out of the barn. The defense lawyers filed
motions for a new trial or alternatively for a judgment of acquittal,
and all of their arguments were rejected by Judge Bucklew on July 28.
Sentencing is scheduled for September 5.

What will Max face on Sentencing? Prior to sentencing, a
report will be prepared by staff to aid the judge in sentencing, and
the defendants and their counsel have the opportunity to provide
information that will be included in the report. The pre-sentence
report will include a recommendation based on a point system contained
in the Federal Sentencing Guidelines Manual. Though, in this case, its
provisions are not mandatory upon the judge, the judge is obliged to
consider those guidelines in sentencing a defendant and the large
majority of sentences imposed by Federal courts comply with the
Guidelines. Please remember that Max was not convicted on the
basis of
creating the material, but for merely distributing it, and distributors
of these titles and other videos like them put the distributor in the
path of the same federal criminal charges and penalties faced by Max.
Distribution of Max material is also at the center of the Harb/Movies
By Mail case in Salt Lake. [2012
Update: Max was sentenced to 46 month's confinement. His
conviction and sentence were upheld
by the 11th Circuit.]

Beyond the lessons about the dangers which inhere in extreme
content, an additional point illustrated in this case is to know where
your servers are located, and in every business decision, to place them
and conduct all business activities in jurisdictions clearly tolerant
or accepting of your material.

2. HINTS FROM THE SUPREME COURT ABOUT THE HEALTH OF OBSCENITY
LAW.

Signs of the Times. The lawyers of the First Amendment
Lawyers' Association continue to fight hard for the reversal of
obscenity laws in the United States, and they deserve commendation for
keeping the flame of Liberty alive. But to suppose that victory will
come any time soon is probably not an accurate reading of our times and
the developments which define them. It is wise to consider that in
Phoenix, a city far outside the Bible Belt, two trials were conducted
during 2007 involving different defendants and different materials, and
that obscenity convictions
resulted in each case. Meanwhile, in
Pittsburgh, Extreme
Associates is still pending, Harub/Movies by Mail
is still pending in Salt Lake [2012 Update: Cambria quietly negotiated
a guitly plea in this case], and John
Stagliano was indicted in April
for distributing “ Milk Nymphos ” , “ Storm Squirters 2: Target
Practice ” , and the trailer for “ Fetish Fanatic Chapter 5 ”. Ira
Isaacs in LA faces either a new trial or a continuation of his trial
for his extreme content centering on sex, animals and things that
usually go on in a bathroom or deep in the woods, which is actually not
a bad description of where he finds himself. An assortment of obscenity
charges are pending in Kansas and Virginia. Michael and Sharon Corbett
(“ girlspooping.com ”), Chris Wilson (“ nowthatsfuckedup.com ”), Karen
Fletcher (“ Red Rose ”), and the Cum on Her Face defendants (each and
every one of these four defended by the same well-known firm) each took
a plea. And, in San Jose, in the Northern District of California, of
all places, Robert Allan Thomas was just recently indicted on three
counts of mailing obscene (bestiality) videos and one count of running
an obscenity business. This is the same Thomas who was indicted in
Memphis, Tennessee, arising out of the operations of a California BBS
in 1994, giving rise to one of the earliest online obscenity cases.

In short, there have not been so many obscenity-related
prosecutions brought – and so many results disheartening to the
Industry in such quick succession - in many years. Something in the air
feels different to this observer, and while a large-scale campaign may
never come, the chill we feel may be the first signs of a cold front
moving in during the waning days of the Bush Administration.

Hints From the Supreme Court? In each of the cases I've
mentioned, the lawyers have challenged the constitutionality of the
obscenity statutes or they will. Some lawyers have found grounds for
hope in Lawrence v. Texas , the 2003 right to privacy case that
overturned Texas's sodomy statute, a case that is all about the
legitimate scope of government regulation of private sexual practices.
The lawyers in Extreme Associates convinced one judge that the sexual
privacy holding in Lawrence doomed the obscenity statutes, but he was
reversed by the Third Circuit. The Supreme Court declined to review
that reversal – which is always said to mean nothing about the merits
of the request – and it did so rapidly. Though the United States
Supreme Court has not directly tackled the constitutional scope of the
obscenity statutes in about twenty years, the High Court has twice
quite recently alluded to obscenity law - in comments that suggest its
continuing health and vitality. First, in United States v. Williams ,
concerning pandering for Child Pornography and decided on May 19, 2008,
Justice Scalia, writing for a seven member majority, began his analysis
by noting that “ We have long held that obscene speech—sexually
explicit material that violates fundamental notions of decency—is not
protected by the First Amendment .” Slip Opinion at 1. Five weeks
later, on June 26, 2008, Justice Scalia again, writing for a five
member majority in Heller
v. District of Columbia, a case that for the
first time comprehensively assessed the Second Amendment and declared
the laws of the District of Columbia that banned private handgun
ownership in the home unconstitutional, could not resist the urge to
mention the obscenity exception to the First Amendment in support of
his position, noting that “ The First Amendment contains the
freedom-of-speech guarantee that the people ratified, which included
exceptions for obscenity , libel, and disclosure of state secrets . .
.”. Slip Opinion at 63. These statements passed without comment in any
dissent or concurrence. Other lawyers may try to dilute the
significance of these texts by calling them impertinent asides
regarding inadequately briefed issues that were not central to the
decisions, but, after assessing the placement and purpose of each, my
hunch is that Justice Scalia used these words to telegraph the position
of the Court with regard to the continuing vitality of obscenity law. I
don't see the Supreme Court enlarging the holding in Lawrence to
invalidate obscenity statutes any time soon.

On May 19, 2008, the United States Supreme Court, in United
States v. Williams, reversed the Eleventh Circuit and upheld
the
constitutionality of a law related to pandering material as “child
pornography” even if it wasn't really child pornography. The law,
contained in Title 18 United States Code Section 2252A, criminally
penalizes the knowing advertising, promoting, and distributing (among
other activities) of material – or “purported matter” in a manner that
reflects a belief that the material is child pornography or is intended
to cause another to believe that it is child pornography. This statute
has the power to reach material that 1) does not actually even exist
(“purported material”) 2) obscene material made exclusively with adults
who are depicted as minors engaging in actual, explicit sex, and 3),
last but surely not least, minors depicted in actual, explicit sex.
This is all punishable between five and twenty years in prison.

Congress passed this law in reaction to the decision in Free
Speech Coalition v. Ashcroft (2002) which invalidated
Congress's
earlier attempts to proscribe materials put forward as child
pornography. The Free Speech Coalition opinion was grounded on the
proposition that a flat prohibition of material depicting underage sex
can be banned, when it is not obscene, only when real children were
involved in the creation of the material. The Williams case highlights
that the statute invalidated in Free Speech Coalition banned possession
of such materials without regard to whether real children were
involved, while the more recent statute relates exclusively
solicitations and transfers rather than possession. The Court held that
the law was neither constitutionally overbroad nor impermissibly vague.

An important principle articulated in Williams is
that speech
which proposes illegal transactions enjoys no constitutional
protection. It is not important to the Court whether the material
exists or whether or not it depicts underage performers; Justice Scalia
writes that Congress may properly create crimes that involve fraudulent
offers and also those which propose an illegal transaction. The Court
views this statute as including both, such as a fraudulent offer to
enter into an illegal transfer, making it doubly punishable.

At the root of prosecutions under this statute, there must be
a transactional statement, conversation and/or circumstances from which
it is evident that the defendant either believed or intended others to
understand that the material transferred or to be transferred was:

1) Actual child pornography or -

2) An obscene and sexually explicit depiction of a minor
having sex, performed by an adult.

Accordingly, webmasters need to scour their sites and
promotional materials and otherwise positively act to assure that they
1) do not appear to express a belief that the materials depict minors,
2) do not appear to lead others to understand that the materials depict
minors, 3) do not appear to express a belief that the materials are
obscene, and 4) do not appear to lead others to understand that the
materials are obscene. An appopriate Notice may be of tremendous help
and all producers and webmasters should consult an attorney if youth
has anything whatsoever to do with the material in order to formulate
that Notice.

4. CONNECTIONS DISTRIBUTION V. KEISLER – THE STATUS OF SECTION
2257.

On October 23, 2007, a three-member panel of the Sixth Circuit
sitting in Ohio, invalidated
Section 2257 and its supporting
regulations, determining that they violated the First Amendment. None
of the judges saw the case quite the same way, but two of them agreed
that it was wholly unconstitutionally and that they could not fix it by
interpretation. The third judge, too, who dissented from the
determination of invalidity, agreed that serious constitutional defects
existed, but he felt that the court could fix the statute by limiting
it to commercial situations. (Even that dissenter proposed excising out
language applying to Secondary Producers in the statute to save its
constitutionality, thereby undoing an important part of the Adam Walsh
Act.) The others disagreed with the dissenter for a variety of reasons,
including a legislative history that plainly shows that Congress
intended to reach non-commercial distribution , because that's where
the bulk of child porn is made and moved. My sense is that, were the
statute limited to commercial photography and commercial distribution,
this panel would have come to a different result upholding Section
2257, because the most serious unconstitutional obnoxiousness they
found in the statute related to personal and private images that enjoy
an expectation of privacy in the home. They were concerned with the
chilling effect upon the creation of noncommercial images when the age
of the model was actually known by the photographer. The court seemed
appalled that a government inspector could come in under the law to
view video records of the most intimate moments of a married couple.
There is not a syllable in the decision suggesting that the compliance
obligations are impermissibly overburdensome on commercial producers,
but this is not a case involving images made for profit: It is a
swingers case.

This comes in the wake of the determination in the
United
States District Court at the tail end of 2005 in Denver, in
the case
brought there by the Free Speech Coalition, that essentially none of
its constitutional arguments broadly attacking the regulatory scheme
held water. In contrast with Connections in Cincinnati, the Denver case
was all about commercial producers - and the burden of their compliance
requirements occupied center-stage. The judge found just a couple of
its provisions to be unduly burdensome, most notably the requirement
that camgirls expensively archive all of their presentations. The court
did follow the much earlier decision
of its own supervising Tenth
Circuit in invalidating the Secondary Producer obligations on
non-constitutional grounds of statutory interpretation. Since the time
of that decision, the case has been in a kind of stasis. The FSC might
have appealed to the Tenth Circuit and risk losing again on the
constitutional issues. But they gave the impression of being
immobilized by fear or apprehension without any significant public
explanation of why the case was in the doldrums. The following Summer,
Congress responded to the FSC's lawsuit – and the Tenth Circuit - with
provisions contained in the Adam Walsh Act that demonstrated its
resolve to impose the burdens on Secondary Producers, and thereby
eliminating the non-constitutional arguments.

Meanwhile, back in Cincinnati, April 10, 2008, the
Government's Petition for rehearing en banc was granted by Sixth
Circuit. This means that all of the active judges of the Sixth Circuit
will reconsider the three-judge panel's result. While they might
affirm, the granting of en banc review suggests that a number of the
other judges are troubled by the decision, and that's not good news. A
decision should come in late 2008 or in 2009 . Regardless of outcome,
this decision marks only the third time that Section 2257 will have a
chance to come before the Supreme Court. The last time that happened,
in the Tenth Circuit many years ago, when the Government lost, it did
not seek review in the Supreme Court.

Since the Connections decision was announced, the FBI has
suspended records inspection. The adult industry has had many
opportunities to get its records in shape. It would be prudent were
webmasters and producers to use this time to review their records and
correct any defects.

The Connections decision is not the law of the land. Even in
the Sixth Circuit, the granting of a petition for rehearing en banc had
the legal effect of vacating the opinion and judgment , which now has
no legal effect (6 th Cir. Rule 35 (a.)); It would be a serious
mistake, even within the Sixth Circuit (Michigan, Ohio, Kentucky, and
Tennessee) to treat the opinion as anything more than a tentative
analysis, which, for the time, has been overtaken by events. 2257
remains the fully enforceable law of the land. You should also
understand that no injunction or other order exists that compels the
Government to suspend 2257 Inspections. DOJ may conduct inspections
without prior notice under the law – and seems to forbear from doing so
because, so long and uncertainty about the validity of the statute
exists, it assesses some risk to itself in doing so. That judgment is
subject to change without any prior notice to you, too. [2012 Update:
The en banc review by the full assembly of judges consituting the Sixth
Circuit did not turn out well for the forces opposing Section 2257. The
decision of the three judge panel was reversed
and the United States Supreme Court refused to accept the case for
review.]

5. THE IRA ISAACS MISTRIAL.

In one of the most mucked-up situations ever to arise in an
obscenity trial, the presiding judge of the Ninth Circuit, Alex
Kosinsky, somehow got himself designated to act as trial judge for Ira
Isaacs, he began the Isaacs trial, then he got “outed” - probably by
someone with a personal or philosophical animus against him – as having
some soft but definitely “adult” images on a server under his control
and associated with a personal web site, and then he recused himself
from further proceedings in the case, declaring a mistrial. The trial
began on June 9, 2008 and Judge Kozinski suspended it on June 11th
after the jury was empanelled and heard a couple of technical
witnesses. The legal effect of all of this is unclear, and his
attorney, who opposed the recusal, is taking the position that no
mistrial is necessary and the trial which was begun simply should
proceed to its termination. He has filed a motion objecting to the
setting of a new trial date, contending that Double Jeopardy bars
anything but the trial which was begun.

Judge Kozinski got out of the kitchen just as soon as the
temperature went up a few degrees, doing so even before the Government
had taken a position on the subject . It got clouded further when,
after the judge acknowledged his responsibility for the material, his
grown son started clamoring to take responsibility for the materials
stored in the judge's server space.

The recusal itself is highly controversial. I wrote an article
for AVN Online a few years back (“Here Cum da Judge!”) taking the
Kansas Supreme Court to task for removing a judge – for the third time
in Kansas history - because he watched porn in chambers.
http://www.avn.com/video/articles/25063.html . What message about
community acceptance and toleration is communicated to potential jurors
and to other judges when someone is prohibited from acting as a judge
because he/she looks at porn? How is a trial judge to assess
contemporary standards without knowing what is out there? No one could
imagine a judge disqualifying himself from a DUI case because he drives
a car. Or because he drinks. Or because he is a drinker sometimes who
drives a car. How is the appearance of impropriety to the public to be
judged? By the loudest, most intolerant and repressive and tight-assed
voices? The recusal makes no real sense to me and it seems to be one of
those quiet defeats for liberty that Americans seem to accept with
alarming regularity in this age. The mistrial makes even less sense.

Now Mr. Isaacs is slated to go to trial with U.S. District
Court Judge George King presiding, who as a federal prosecutor in the
late '60s won a conviction against adult producer William Pincus, a
conviction that was later overturned by the U.S. Supreme Court. It
seems mildly ironic to me that no one sees an appearance of impropriety
in that!

Ira Isaacs was indicted in the United States District Court
for the Central District of Florida in Los Angles. The February, 2007
indictment relates to video titles described as

Isaacs and his lawyer have been characterizing the
coprophilic- and equine-interest videos in the media as “shock art”.
Paul Thomas at Vivid is having none of it. He was quoted on the LA
Weekly website, in an article written by Steven Mikulkan, as stating:
“" We at Vivid applaud his prosecution. Freedom of speech carries with
it responsibility. It was never intended for there to be videos of
people shitting in each other's faces. " Isaacs shot back: "What Mr.
Thomas fails to realize, is the US government is not only coming for
me, but will soon becoming for him and Vivid as well as others in the
adult industry. This is made evident by the obscenity prosecutions of
Extreme Associates, JM Productions, Max Hardcore and most recently John
Stagliano from Evil Angel. Vivid may feel they're safe in Los Angeles;
however, community standards in places like West Virginia, Utah and
Mississippi may not be so understanding of his brand of porn - and I'm
sure Vivid's product and Websites go to those places. The Internet goes
everywhere; no one can hide from these ultra-conservative venues."

No work can be determined to be obscene in an American court
if it possesses serious artistic value. The assessment is made
objectively by juries and judges. It is not enough that a producer
calls his work serious art. It's not enough even if he really means it.
Society makes the call through its juries and judges. In the end, a
jury will determine whether it finds a serious artistic purpose amidst
the feces .

Isaacs was initially indicted with two counts alleging
violations of 18 United States Code Section 2257 , but those counts
were dropped without explanation in Spring, 2008. It is likely that the
DOJ does not wish to see the Ninth Circuit weigh in on Section 2257 if
it can be avoided.

July 12, 2007 Update

Justice Department Promulgates Proposed Section
2257 Rule Changes

in an Attempt to Bolster Arguments for their
Validity

Today the US Justice Department published its "Proposed rule"
which would modify certain limited parts of the Regulations
implementing Title 18 United States Code Section 2257. Comments may be
submitted to Drew
Oosterbaan at CEOS until September 10 by any interested
person. Comments may be submitted by Email, fax, or mail and full
particulars are found in the "Proposed rule" as published today in the
Federal Register.

I have prepared a Table
that includes the existing regulations and which highlights the
proposed changes in an adjacent column.

Several influences are manifest in the Proposal, including the
determination of
Judge Miller in Denver that the data-retention
requirement for streaming video presented an unreasonable economic
burden on streaming video and the language of HR4472, the Adam Walsh
Act. The Proposal generally smells like bureauocratic tinkering and
tweaking with an underlying intent of strengthening DOJ's arguments for
the constitutional validity of the scheme. The courts will surely have
a chance to decide validity; It's my opinion that huge portions of the
mandated protocol unreasonably burden expression and cannot finally
survive judicial challenge.

Here are the highlights of the Proposal, more or less in the
order that I find significant:

1. 75.6 (b) (2) and 75.1 (m) would require the date of
actual photography for Compliance Statement purposes. This is new. The
existing regulations appear to state that a later date of issuance of a
work, the date of its re-issuance, and the like would suffice for the
Statement, and an authoritative DOJ letter from July, 2005 identified
the DOJ position as being that the date of completion of the original
work would suffice - a date that might be long after photography.
Frankly, it never seemed to make much sense to avert the photography of
minors that the date in the Statement might be later than the date of
photography - my own Comments in 2005 to DOJ said so - and I would
understand this change to bring the regulations better into line with
their articulated purpose, in order to make them more defensible in
court. This Proposal would, if adopted, probably become a major
headache for some Secondary Producer webmasters as they scramble to
obtain this information from the Primary Producers. In many cases,
there may no longer be a record of the date of original photography.

2. 75.8 (d), if adopted, would excise language in the
existing Regulations that permits the Compliance Statement to appear on
a linked page. DOJ says Congress made them do that in HR4472, the Adam
Walsh Act. That means that the actual Statement - and not just a link -
must appear on every page of a web site that contains a covered
depiction. This serves to exacerbate the torment of small, home-based
webmasters, trying to keep their adult business a personal and private
matter, by requiring them to post the home address where the records
are maintained on every page of their site; It will tend to drive
home-based webmasters out of the adult Internet and help to consolidate
the power of larger producers.

3. 75.2 (a) (1) would REQUIRE maintenance of a HARD COPY of
all identification documents maintained under 2257. So much for
paperless Section 2257 Compliance in a Box, as has been marketed to the
adult community.

4. 75.2 (b) permits a Secondary Producer to accept REDACTED
identification documents, taking out social security number, telephone
number, and address, should they appear on the document, but the ID
maintained by a Secondary Producer must retain the ID number of the
identity document, the name, and the date of birth. This is most
certainly designed by DOJ as an end-run around certain privacy
arguments advanced against the Section 2257 Scheme.

5. 75.2 (a) (1). This modifies the obligation to maintain a
copy of the depiction with regard to live, streaming video, and is
certainly the product of Judge Miller's concern that the economic cost
of data retention for camgirls would tend to drive them out of their
livelihoods. With live streaming video, the entire stream does not need
to be archived for compliance, just a selection long enough to
demonstrate who the performers are and to tie them to their ID records
establishing their ages. The clear purpose here is to take away an
argument of economic burden that has been used to attack the
constitutionality of the scheme.

6. 75.2 (g) deals with images of merely "lascivious
depictions of the genitals or pubic area" which were not covered by
Section 2257 before the enactment of HR4472. The right to continue
republication of such images that were created before July 23, 2006 is
unaffected. The "lascivious depiction" language is not defined either
in the statute nor in the proposed regulations and it creates special
danger for webmasters, which is actually emphasized in the official
commentary introducing this Proposal. That commentary cites to a number
of leading cases dealing with lewd displays, all of which arose in
child pornography context. One of those cases - cited in that
introductory commentary - presents the danger that DOJ may likely
interpret Section 2257 to include and regulate nonnude images that
focus attention on a fully clothed pubic area. That's exactly the
situation in which a child pornography conviction was sustained in
United States v. Knox, 32 F.3d 733
(3d Cir. 1994), the leading case
determining that fully clothed depictions can be lascivious
exhibitions. The absence of a definition permits the DOJ to take the
position that 2257 governs images depicting fully-clothed models not
engaged in sexual conduct.

July 28, 2006 Update

A Brief Explanation of the Effects of House
Resolution 4472 as enacted

Fourteen years ago, In 1992, the United States Department of
Justice promulgated regulations to implement Section 2257 which
included a class of persons called "secondary producers" who used
explicit images but who had nothing to do with their creation. They
were charged with the duty of maintaining the same records as though
they were a photographer, with the obligation to provide a disclosure
statement, and the the duty to make the records available for
inspection. Certain constitutional objections to the statute and the
regulation were rejected by the United States Court of Appeals for the
District of Columbia Circuit in ALA v. Reno in 1995 and the regulations
went into effect shortly after. Eight years ago in Denver, the United
Stated Court of Appeals for the Tenth Circuit, in Sundance Associates
v. Reno, determined that the "secondary producer" obligations imposed
by DOJ's regulations went further than Congress had authorized and that
the record-keeping obligation had been imposed only on those with a
close connection to the creation of the content. This ruling was never
followed by any other court, and as a result, it was only the certain
law in the mountain states of the Tenth Circuit.

As a result of plenty of wishful thinking, many
producers in the first generation of adult Internet commerce refused to
provide Section 2257 records to webmasters, the webmasters frequently
licensed the content anyway, and some tried to have it both ways by
providing a disclosure statement referring to the original producer, as
was permitted under the regulations, but not maintaining records as
required by the regulations. Some webmasters thought they were fully in
compliance with the law but they simply did not know that the
regulations required them to maintain the records themselves.

When the Free Speech Coalition responded to the Attorney
General's newly amended regulations in 2005 with a lawsuit in the Tenth
Circuit challenging the secondary producer obligations - a claim it was
bound to win in the Tenth Circuit as a result of Sundance - Congress
reacted by introducing at least three bills making it clear that
Congress presently intended to impose the record-keeping obligation on
secondary producers. These bills were introduced both before and after
Judge Miller in Denver issued his December, 2005 ruling which
preliminarily enjoined enforcement of the secondary producer
requirements - as a matter of authority rather than constitutionality
-following the higher court decision in Sundance. (The Free Speech
Coalition had also challenged the constitutionality of the entire
scheme, including its effects on the creating photographers and
videographers. With one exception relating to maintaining a copy of the
depiction of streaming content, Judge Miller shot down every
constitutional argument he reached concerning the scheme imposed by
Section 2257 and the implementing regulations.)

Because Congress had the power to make its designation of
authority to DOJ clear concerning secondary producers, Congress could
fix the problem affecting enforceability of the secondary producer
obligations. In fact, Congressional attention to Section 2257 was ripe
because, through an oversight in the Protect Act enacted in Spring
2003, the definitions of sexually explicit conduct contained in Section
2256 were no longer in synch with Section 2257 and needed to be
adjusted. Congress took advantage of that need for its attention, and
in my view, directly responded to the Free Speech Coalition's lawsuit,
by crafting a legislative fix for the situation in the Tenth Circuit
that cleared both houses of Congress and which became law on July 27,
2006.

The term "secondary producer" never existed in Section 2257
and is not found in the recently amended statute, either. Instead,
Congress has included the persons who insert images depicting actual,
explicit sex and those who digitize them with a commercial interest
into the expanded definition of the persons who "produce" such conduct.
Congress has clearly legislated that secondary producers are, indeed,
producers. The obligations of the law affect them as much as the guy
behind the lens, assuming the constitutionality of the Statute. It is
now clear that licensing/assignee webmasters must maintain the records
and content, publish the notice, categorize the records, and make them
available for inspection. The essential difference between the
categories of producers remains as laid out in the regulations. The
noncreative webmaster may accept as authentic those records tendered by
the primary producer and must categorize them and maintain them for
inspection, make them available for that purpose, and publish a
disclosure statement, listing the primary producer or himself, at his
option. He must also maintain a record of the name and address of the
primary producer.

Given the commencement of inspections under the Section by
trained teams of agents during the past week and their intimations of a
sustained program of inspection, and in light of the five-year penalty
provided for in the Statute, it would be foolhardy to continue the
publication of covered images that are not documented pursuant to the
statute and regulations. It would be unreasonably risky under these
circumstances to license or acquire covered content that is not
accompanied by the mandated records, in view of Judge Miller's
wholesale rejection of the constitutional claims he considered. Those
who have never understood their obligations, and those who never
complied, now face the prospect of pulling content down at the risk of
a jail term. Some who did not understand now do finally understand.

Congress went a bit further in responding to the situation in
Denver. It included lascivious images depicting genitals and the pubic
area with the other matters that had earlier triggered Section 2257. It
specifically provided that this provision is prospective rather than
retrospective, working only to impose the obligation on images, not
otherwise governed by Section 2257, that were not produced in whole or
in part before July 27, 2006. This is likely to have a restraining
effect on the use of new genital images which are not accompanied by
records, which is its intended effect.

It also created a federal felony in the refusal of a producer
to permit the Attorney General or his designee to permit the
inspections under Section 2257.

House Bill 4472 made it a federal crime to produce obscenity.
Though any competent defense to such a charge will include
constitutional attacks on the statute, this elevates content production
to a matter which may implicate a federal felony for the first time.

Finally, Congress created Section 2257A dealing with simulated
depictions of sexual acts, a provision which expressly extends a wide
discretion to the Attorney General in fleshing out regulations that
will precisely describe duties and exemptions, and which will not
become effective until those regulations are promulgated.

On Saturday, August 5, at the hour of 1:00 pm, Joe Obenberger
will conduct a two-hour legal workshop for content providers and
webmasters as part of the AVN Online Internext show and under its
auspices, at the Westin Diplomat Resort in Hollywood, Florida, in
Diplomat Ballroom 1. The workshop will be free to Internext attendees
with a Seminar Pass. The program will concentrate on the substance of
the law of obscenity and the punishment and forfeiture provisions that
apply to it - and Section 2257, including its recent amendments - and
to the legal principles involving copyright, privacy, and the
appropriation of images and performances. This workshop is intended to
provide essential legal information that should be in the possession of
everyone involved in the online adult industry.

At the hour of 10:00 on Sunday Morning, August 6, he will
participate in the Internext legal seminar together with other
attorneys. Though we had predicted that no seminar held at 10 am on the
last day of Internext, a Sunday, was likely to draw a substantial
audience, the present circumstances suggest that a standing-room-only
audience may appear.

July 27, 2006 Update

President Bush today signed House Resolution 4472 into law,
thereby effecting substantial changes in the Record Keeping
Requirements imposed on persons involved in the creation and
distribution of sexually explicit matters. A Redlined copy of
Section 2257
graphically illustrating the changes, prepared by Reed Lee of this
office, may be found here.
A copy of the entire enactment of HR 4472
may be found here.

The most substantial practical effect of the amendment to
Section 2257 is that persons who insert graphic sexual material into a
website will now be embraced as producers under the statute - clearly
establishing their duty to maintain the same records which the law has
always required of the photographing producer - even if the webmaster
had nothing to do with the creation of the images. This eliminates
doubt that Congress intends "secondary producers" to maintain the
records required of all producers, to make those records available for
inspection, and to post a Section 2257 Compliance Statement. The
amendment also eliminates an argument that DOJ's regulations concerning
identity documents may conflict with the statute. The amendment
criminalizes the refusal to permit inspections under the Statute. (This
website will post commentary concerning the amendment in the days to
come. In the meantime, the "Webmaster's Primer" on Section 2257,
available on this site, should be regarded as a historical document
rather than a source of interpretation under the law as it presently
exists. ) The House Resolution also established Section 2257A, dealing
with the depiction of simulated sex, whose provisions will go into
effect at a later time, under regulations to be promulgated by DOJ.

During the past week, the Department of Justice has conducted
the first Section 2257 inspections ever undertaken - in Los Angeles.
Comments of the Agents, reported in the press, suggest that further
inspections are imminent. Section 2257 provides for term of five years
imprisonment for its violation. All producers - including licensing
webmasters - should prepare now for such inspections.

June 27, 2005 Update

We have posted an html copy of the stipulated
order in FSC v. Gonzales. Prepared from the Acrobat .pdf
original on file with the Court in Denver, it is the agreement between
the Free Speech Coalition and the Department of Justice.

We have posted also a comprehensive
five-column table, breaking down the original, proposed, and
finally promulgated Part 75 Regulations (implementing Section 2257),
section by section, subparagraph by subparagraph to compare changes,
highlighting changes in color, and extracting from the official DOJ
commentary those particular statements that seem associated with the
respective parts of the regulation. Anyone who has read through the DOJ
Commentary knows that there is no obvious order to the various
treatments and that there is no handy way to correlate the DOJ comments
to the Sections and their paragraphs.

It was obvious to us that the disorder of the DOJ Commentary
interfered with understanding, and accordingly, we resolved to parse
the Commentary out in an ordered fashion associating its text with the
portions of the Regulation to which the text related. This table is the
result of four weeks of work by four persons associated with this Law
Office and we believe that it should help clarify the meaning and
intent of DOJ as expressed in the various provisions of the new
Regulation. Although it cannot eliminate the contradictions and
inconsistencies among the various provisions of the final Regulation,
it may clarify some as it more boldly highlight others.

We also maintain on this site our preliminary three-column
table merely highlighting and identifying changes from the
original and proposed regulations through the final regulation.

June 24, 2005 Update

Good news emerges from Judge Miller's courtroom in Denver
today. The Free Speech Coalition brokered an agreement with the US
Department of Justice which restrains the Justice Department from
inspections of the records of FSC members under Section 2257 and
prosecutions under the same Section. The period covered by the
agreement extends to thirty days after the expected date of a hearing
for a preliminary injunction, to September 7, 2005. Press accounts
suggest that our friend and colleague, Paul Cambria, played a
significant and central role in the negotiations, with the
collaboration of other attorneys. Press accounts also suggest that the
DOJ intends to clarify the intent of certain ambiguous or conflicting
or confusing provisions in the regulations which seem to impose a
heavier burden on expression than the already-burdensome regulations
were intended to impose.

May
24, 2005 Update.

Today's Federal Register publishes
the eagerly-awaited final
rule adopting revisions in the Justice
Department's regulations in implementation of 18 USC Section 2257. We
have compiled a preliminary
table contrasting the existing regs, the proposals made last
summer, and the final regulations promulgated today. We apologize for
any formatting issues in lining up the parallel provisions. The
regulations are surprising for both the changes that were made in
response to numerous "Comments" submitted by the web community, and for
the refusal of DOJ to change some of the most obnoxious provisions. The
extensive commentary of Drew Oosterbaan, who heads CEOS, should be read
carefully to understand DOJ's rationale. We were particularly troubled
by the DOJ reliance on caselaw that is simply not on point to support
the overreach of the provisions. Though we happy to see an expression -
belated as it is - for the safety of the small businesses operating on
the adult Internet, we are saddened that the rhetoric is not backed up
by regulations that take the potential of harm into account. The
regulations wholly ignore the massive economic cost of the warehousing
of gigabyte upon gigabyte of streaming video. There is much more to say
in careful analysis, but for the time being, it is important to quickly
provide our clients, friends, and surfers with the information posted
now. JDO

May 17, 2005 Update

The United States Justice Department announced
this afternoon that Attorney General Alberto Gonzales has signed a
final rule containing changes to the Justice Department regulations
implementing 18 USC Section 2257. These changes
will become effective thirty days after their publication in the
Federal
Register unless their enforcement is enjoined by a federal
court. Until they are published, we cannot know how closely they
resemble the changes proposed last June by the Justice Department. A
table comparing the existing regulations with the June 2004 proposal is
found here. A detailed article highlighting the differences, published
last Summer in AVN Online, is found here.

Contrary to at least one GFY-posted account, the sky may not
actually be falling. The promulgation points however to a present
intention on the part of DOJ to actually enforce Section 2257 for the
first time. Indeed, there may be something falling on the heads of
those who have not taken the law seriously, but it will not be the sky.
The press release does put quotation marks around the term "pornography
producers", a term that does not exist in the present statute or
regulations or the proposed regulation, and hints that the final
version has been modified, probably in the direction of the so-called
"secondary producer" requirements; Though at least one US Court of
Appeals has found the provisions to work beyond the authority of the
Justice Department, the existing regulations have always required web
publishers who buy content made by others to obtain and retain and make
available for inspection the original documents and alias information
obtained by the original content producers. Substantial parts of the
proposal made last Summer were unconstitutional on their face - notably
the inspection requirement that mandated availability for inspection of
the records from 8am to 6pm. The burden this onerous requirement would
place on part-time webmasters would eliminate substantial
constitutionally protected expression. The proposal also required the
long-term archiving of terabyte upon terabyte of live, streaming
content for many years - and the expensive segregation of this data
from the working servers of sites. All of this was related to Justice
by this firm during the comment period, and we will shortly know
whether any of the hardship was taken into account in the final rule.

The Free Speech Coalition can be expected to take point at the
forward edge of this battle by initiating litigation. Understand
though, that an injunction against the enforcement of the changes alone
will be of little value. The existing regulations provide the Justice
Department with very effective tools for all of the purposes underlying
the statute and regulation. It is my best hunch that Justice would not
be promulgating the changes without plans to enforce in the immediate
future.

All available information will be posted here as it becomes
available. JDO

The Pace and Tempo Quicken:

Chronology of the Emerging Porn Offensive

Number Two on the DOJ Playlist with a Bullet

January 6, 2005. Alberto Gonzales nomination
hearing, Senate Judiciary Committee: Mr. Gonzales stated six
particular goals. Number six was "Obscenity"; The AG-to be explained,
"I think obscenity is something else that very much concerns me. I've
got two young sons, and it really bothers me about how easy it is to
have access to pornography".

Fourteen days later, on January 20, US District Judge Gary
Lancaster declared the federal obscenity statutes to be
unconstitutional - at least as applied to the activities of Extreme
Associates, Inc., Robert Zicari, and Janet Romano in shipping obscene
material by mail-order and in selling access to a pay website
containing material that was conceded by the defense to be obscene for
the purposes of the motion. His decision
rested strongly on the right to Privacy as articulated in Lawrence v.
Texas, 539 U.S. 558 (2003) and Stanley v. Georgia, 394 U.S. 557, 564-6
(1969).

On February 14, 2005, Alberto Gonzales was sworn in as the
eightieth Attorney General of the United States. He faced an immediate
and urgent decision as to whether the government should appeal from the
decision in Extreme Associates. One year, to the day, earlier, Bruce
Taylor's appointment as Senior Counsel to the chief of the DOJ Criminal
Division had been quietly announced in the LA Times.

Two days later, on February 16, the Justice Department
filed its notice of appeal from Judge Lancaster's dismissal of the
Indictment. "The Department of Justice places a premium on the First
Amendment right to free speech, but certain activities do not fall
within those protections, such as selling or distributing obscene
materials," Attorney General Alberto Gonzales proclaimed in a written
statement. "The Department of Justice remains strongly
committed to the investigation and prosecution of adult obscenity
cases."

Twelve days later, on February 28, 2005, the Attorney
General spoke
at the Hoover Institute and laid out a vision of his term: "Another
area where I will continue to advance the cause of justice and human
dignity is in the aggressive prosecution of purveyors of obscene
materials. I am strongly committed to ensuring the right of free
speech; the right of ordinary citizens and of the press to speak out
and to express their views and ideas is one of the greatest strengths
of our form of government, but obscene materials are not protected by
the First Amendment, and I am committed to prosecuting these crimes
aggressively."

Very quietly, a short time later, a publication named DOJ
Obscenity Prosecution News made its appearance on
the US DOJ Criminal Division web page, ominously describing itself as
"Spring 2005, Volume I, Issue 1" of a new periodical edited by Bruce
Taylor and apparently dedicated to chronicling a new wave of adult
obscenity prosecution. AVN's Mark Kernes wrote an article detailing the
newsletter, attributing the tip to XXXLAW.

On March 16, Senator Brownback's Subcommittee on the
Constitution, Civil Rights and Property Rights of the U.S. Senate
Committee on Judiciary held a hearing
in reaction to the decision in Extreme Associates. Senator Brownback
first ridiculed the reasoning of Judge Lancaster's decision by
observing: "Judge Lancaster cobbled together hand-picked strands of
14th Amendment substantive due process, decisions from Roe, Lawrence
and others and ruled that the statutes at issue violated an unwritten
constitutional right to sexual privacy."

On May 3, 2005, Attorney General Gonzales spoke
to a group of prosecutors and law enforcement officers at a conference
in Gaitlinburg, Tennessee and significantly addressed adult obscenity,
listing the prosecution of obscenity second among his goals as Attorney
General:
"From street corners to websites, obscenity and child pornography rip
at
the heart of our moral values and too easily corrupt our communities.
I've made it clear that I intend to aggressively combat the purveyors
of obscene materials. . . Enforcement is absolutely necessary if we are
going to protect citizens and children from exposure to obscene
materials. . . I have directed Department officials to carefully review
federal laws to determine how we can further strengthen our hand in
prosecuting obscenity. Our goal is to assess all the law enforcement
methods we use-and identify the tools we may still need-to more
effectively investigate and prosecute these crimes."

Two days later, on May 5, last week Thursday, the Chief of
the DOJ Criminal Division announced the formation of an obscenity
prosecution task force composed of CEOS trial attorneys and dedicated
exclusively to the prosecution of adult obscenity. Counsel to the task
force is Bruce Taylor; The task force will obtain assistance from the
Organized Crime, Computer Crime, and the Assets Forfeiture units. In
the DOJ Criminal Division press
release, the Chief explained that the global traffic in
obscenity required a specialized response in the computer age. He
pledged to enforce "the laws on the books".

Twelve days later, May 17, 2005, the Attorney General signs
an order approving revised regulations implementing 18 USC Section 2257.

In 2004, The U.S. Attorneys' Bulletin published a lengthy
article on
the prosecution of web-based obscenity cases.

Final Victory in Mike Jones Criminal Obscenity
Appeal

On April 28, 2005, the Illinois Appellate Court entered
an
order dismissing the State's appeal
from an order of the
Circuit Court
in McHenry County, Illinois suppressing any and all evidence derived
from the illegal seizure of evidence from the home and studio of
longtime and respected Internet content producer, Mike Jones in 2000.
The state may apply to the Illinois Supreme Court for review within 21
days. Mike Jones is not guilty of the obscenity and concocted child
porn charges that have hung over his head for five years. We have
represented Mike since from before the time of the search warrant and
we were with him at night after the search left his home and studio in
shambles. THIS IS A CLEAR WIN, a complete victory in an obscenity case.
To the best of our knowledge, this is the last obscenity prosecution
brought in Illinois.

Motions Filed by XXXLAW

to Invalidate Louisiana Obscenity Statute:

Potential Effects on the Internet

It is the privilege of this office to represent Le Video
Store, Inc. and Emmette Jacob, Jr. in criminal obscenity charges
pending in St. Martinville Parish, Louisiana, in the heart of Acadiana,
an hour and a half west of New Orleans. Le Video Store and Mr. Jacob
are not guilty of any crime at all and we will defend them with vigor
and passion.

On May 1, 2005 we filed a 29-page Memorandum in support of our
motion to quash the Bills of Information brought against each of our
clients.

We have challenged the statute as being substantially
overbroad, and therefore unconstitutional, because it aspires to
restrain "electronic communication" and presumably tries to apply its
laws to the Internet. This offends the First Amendment because of its
effect on speech as was suggested by six members of the US Supreme
Court in the last COPA case, Ashcroft v. ACLU and runs afoul of the
Commerce Clause of the US Constitution because of the burden in places
on interstate commerce in expressive materials. The Louisiana statute
is unusual, too, because it includes depictions and descriptions of
sexual conduct between nonhuman animals with each other as part of its
predicate circumstances that trigger the statute. We believe that, in
order for obscenity analysis to begin, some kind of human involvement
must be depicted or described. (That's what I call the "Discovery
Channel Argument.") In short, we think the statute goes beyond the
power of Baton Rouge to legislate. The local ACLU executive director
has agreed that the Louisiana statute is due for a challenge.

Louisiana's law is also unconstitutionally vague.

Louisiana law simply does not define the extent and dimensions
of the "community" for the purposes of applying the community standards
tests of Miller v. California. This hampers anyone intending to sell
books, tapes, DVD's, or Internet content and wanting to conform to the
law. It permits the capricious commencement of charges and it permits a
conviction on a factor never in evidence, never proved, and in fact
never established by the court. It provides no guidance or instruction
for the jury to even begin to answer the question of "which
community?". Accordingly, publisher has no meaningful way to assess the
arrests and convictions of others for erotic material, to conduct
surveys and interview community leaders, to see what's on the shelf in
the library, to evaluate what other adult and nonadult outlets such as
convenience stores and truckstops sell, to determine what's available
in relevant cable TV systems and through pay per view in hotels.

In the course of preparing this motion, we looked at the laws
of 51 American jurisdictions. Among the states and federal government,
29 jurisdictions define the community - usually statewide, but
sometimes by county or judicial district. In the largest number of
jurisdictions, the community is defined by statute (e.g. California,
Illinois, Wisconsin) and in others by court decision. Seventeen
jurisdictions, like Louisiana, have not provided a definition, though
few have brought reported obscenity cases in recent years. We were
unable to find an obscenity law of general applicability at all in five
jurisdictions. In at least one jurisdiction, the state supreme court
held precisely that a failure to define the community in an obscenity
case was fundamentally unfair.

Louisiana's statute contains a seldom-seen provision that
requires a civil proceeding before obscenity prosecutions are commenced
- but which wholly exempts explicit depictions from the protection. The
law seems to establish a category of state-law-preferred porn, or more
accurately, it creates a category of the presumptively obscene. Though
it has been challenged without success in the past, the statute stands
in opposition to American jurisprudence that finds all expression to be
presumptively protected until determined to be obscene in an adversary
proceeding.

Finally, we advance an argument written by Reed Lee of our
office that has already deservedly attracted national interest. It is
addressed to both First Amendment freedoms and the right to privacy
articulated in Stanley v. Georgia and Lawrence v. Texas, and it
ultimately comes to the conclusion - inescapable according to Reed -
that since R.A.V. v.
Minneapolis, all of the existing obscenity laws -
insofar as they regulate what is distributed among consenting adults
and involving only consenting adults - have become invalid on First
Amendment grounds.

This is a case that the adult Internet should watch closely
along with the store owners because it contains significant issues they
share.

US Supreme Court Denies Certiorari:

This comes from one of the most staunchly Republican, most
solidly conservative, richest counties in the country, the birthplace
of Billy Graham and Red Grange, just west of Chicago. On March 29,
2001, after several years of tough litigation, we obtained for our
clients, Palmetto Properties, a substantial victory against DuPage
County, Illinois, invalidating portions of its adult use zoning
ordinance, which taken as a whole, had kept any Gentlemen's Club from
opening in any part of the County under county zoning jurisdiction. In
fact, there were no such clubs anywhere in the County. There are
numerous seminaries in the county seat in Wheaton. Diamond's
Gentlemen's Club opened and remains open because of this litigation.
[Update: As of 2012, Diamond's is no longer open and operating.
Something to do with a road widening operation and eminent domain.] We
applied for attorney's fees for the services rendered on behalf the
client for the arguments which prevailed, so that our clients could be
partially recompensed. The County fought tooth and nail against the
$56,250.00 award granted by the US District Court in Chicago. The
County of DuPage took appeal to the United States Court of Appeals for
the Seventh Circuit, and they lost there, too. Finally, they sought
review in the United States Supreme Court. The Supreme Court denied
review by certiorari on January 18, 2005. Great work by Reed Lee of
this office.

* * *

The coming months and years portend to be a time of great
change for the Adult Internet; Its practices and conventions are to
likely be affected by legal developments - Now is an especially
important time to listen to quality legal speakers - to read all of the
regulations, statutes, and explanations of quality that affect what you
do - to form a close relationship with an attorney - to get your site
or program assessed - and to make such changes as may be necessary. The
time is surely coming when some of you will find yourselves combatants
at the forward edge of the battle area on the battleground of freedom.
When the enemies of Free Speech approach, it will be without warning,
and they will come armed and in force to seize images, computers,
written correspondence, and they will seek to forfeit everything else
of value. They will seek emergency orders over the tangible and
intangible assets of their targets, and there will be little or no time
then to prepare. It remains my advice - as it has been from the start -
that the members of the First Amendment Lawyers' Association who
specialize in the field in which you earn your living are the smart and
logical choice for the times to come. It is also my hope that the
members of the Adult Internet become more closely involved with -and
join - The Free Speech Coalition. It exists to serve you and the
freedom our society demands. JDO

Previous Updates

Updated February, 2004. Reed Lee of J. D.
Obenberger and Associates was re-elected to the Board of Directors of
The Free Speech Coalition. Reed is currently serving as a Director of
FSC and is also National Secretary of the First Amendment Lawyer's
Association, an American national association of lawyers concentrating
in protection of the freedom of speech.

Updated December 18, 2004. XXXLAW Bulletin.
Several times each year, xxxlaw.net transmits a Bulletin of news
significant to adult and Internet industry professionals and people in
general concerned with the downsizing of Liberty in contemporary
American society. These updates frequently deal with First Amendment
Law, significant Supreme Court decisions, legislation, news
developments, and new articles of interest. If you have not received an
XXXLAW Bulletin in 2004, the odds are that your email address has
changed, that your spam filter is blocking "xxx" or "adult". Please do
email us indicating continued interest in receiving the Bulletin to
assure that you will not be omitted. You are invited to forward copies
of our Bulletin to all of your associates and friends. Simply send an email through any
of the links on page and ask to be added or restored or confirmed. We
invite you to join our email family. We never have and never will share
our email list.

Updated August 18, 2004. Adult Internet
Attorneys Larry Walters, Greg Piccionelli, and Joe Obenberger
collaborated during the past two weeks to create draft/template
paragraphs for the use of webmasters and content providers in crafting
"Comments" to the Justice Department regarding the proposed changes to
the Regulations implementing Section 2257. This joint effort for the
good of the adult web community may be found, together with
instructions for emailing you comments to DOJ before August 24 at the AVN
Online Site.

Updated August 18, 2004. Since it first
appeared online in 2000, our "Webmaster's Primer on Section 2257" has
become an Internet standard in describing the history and in explaining
the obligations of that federal law and the regulations associated with
it. At the suggestion of AVN Online, we have thoroughly revised and
updated the Primer to include and critically discuss the newly proposed
DOJ revisions and how they will hit webmasters if adopted. We have not
neglected to address some significant, thorny free speech issues
associated with them, and for reference value, substantial parts of the
legal history of Section 2257, and litigation it has generated, is also
included. AVN Online has graciously agreed to run the farily massive
Third Revised Primer uncut in its Internext Issue, in time to help
webmasters compose their comments to the Justice Department. Those
comments are due by mail, fax, or email to the Chief of CEOS at DOJ no
later than August 24, 2004. Full address information is contained in
the preface to the proposal, linked below, in our June 29 Update. That
article is now running on the AVN Online website under "Features" (sans
footnotes, which they have run in the print edition) and on this site
under our 2257 Section. Click
here for the full Primer.

Updated August 18, 2004. We've returned
from Internext, having survived Hurricane Charlie together with the
other attendees. It was - very sincerely - quite a delight to meet so
many kind and thoughtful persons, including many clients. Thanks also
for the wonderful and kind audience during the legal seminar. AVN did a
particularly spectacular job structuring the seminar - even if it felt
a bit like a police traffic stop to those of us on the platform because
of the intense lighting. Thanks also to the reporters who covered and
wrote about the seminar. It's hard to condense all of the points that
were made by the speakers to a short article, but an excellent job was
done of it.

Updated July 31, 2004. In connection with
our preparation of comments for the Justice Department to read and
consider in the adoption of new regulations implementing Section 2257,
we invite your own comments concerning the newly proposed Regulations
by email to
us. Appropriate comments may be included by us, in our discretion, in
whole or in part, in comments to the Justice Department prepared by us
for one or more of our clients. We are particularly soliciting
verifiable accounts of persons who have been stalked, harassed, or hurt
as a result of compliance with the Notice requirement as presently
written, and instances in which content producers and webmasters have
discontinued web operations as a result of reasonable and well-founded
fear of such hostile contact.

Updated July 12, 2004. Our table comparing
and contrasting the existing regulations implementing Section 2257 and
Mr. Ashcroft's proposal, laying them out side by side with indications
of changed text in color, is posted for your reference here. More - a great deal more! - to
follow.

Updated June 29, 2004. The United States
Supreme Court today announced its opinion in Ashcroft v. ACLU,
involving the Child Online Protection Act. By a 5-4 vote, the Court
sent it back to Philadelphia, without ruling on its constitutionality,
for trial. The Supreme Court refused to overturn a preliminary
injunction that prohibits the government from enforcing the Act with
arrests and indictments. This case amounts to a continuation of the
status quo and not a substantive determination of the issues. It is a
decision that avoided serious loss to the protections of the First
Amendment, but it cannot be called a victory for its principles. Only
two justices - Stevens and Ginsburg - would have invalidated the Act
because it unfairly employs local community standards to determine what
is obscene as to children. The decision may be viewed and downloaded from this site.

We have
prepared a table comparing and contrasting the opinions of
each of the members of the Supreme Court so that you may yourself view
where each stands on "Community Standards".

The four dissenting justices don't recognize the possibility
that there may be a significant amount of material published on the
Internet which may be erotic, nonobscene, and constitutionally
protected at the same time, but nevertheless unsuitable for children:
Justice Breyer, writing for three dissenters writes: "The Act’s
definitions limit the material it regulates to material that does not
enjoy First Amendment protection, namely legally obscene material, and
very little more." The fourth dissenter, Scalia, in citing to Playboy
Enterprises and Ginzburg, writes: "We have recognized that commercial
entities which engage in ‘the sordid business of pandering’ by
‘deliberately emphasiz[ing] the sexually pro-vocative aspects of [their
nonobscene products], in order to catch the salaciously disposed,’
engage in constitutionally unprotected behavior.” Breyer also writes
regarding the prurience fork in Miller, "Insofar as material appeals
to, or panders to, 'the prurient interest,'it simply seeks a sexual
response." Accordingly, it seems to this writer that we were one vote
away from a result that would view substantial portions of the adult
internet as criminal obscenity, portions that we have long viewed as
protected, nonobscene erotica that is nevertheless not generally
suitable for children.

Updated June 29, 2004. Attorney General
John Ashcroft and House Judiciary Chairman Jim Sensenbrenner (9th
District of Wisconsin, R) have announced DOJ proposed revisions to the
Justice Department regulations implementing Section 2257. The backdrop
is that there have never been any 2257 Inspections because, it seems,
the Attorney General has never designated any law enforcement agency to
do so; Outside one reported Court Martial, there never has been a
prosecution for its violation. Notwithstanding the absence of any
investigatory attempts to determine whether Section 2257 was being
complied with, in the absence of any attempt to learn whether its
penalty provisions were ample to deter violations, last year, in the
Protect Act, Congress increased the penalty for violation of Section
from two to five years imprisonment as a maximum. Congress also
required the Attorney General to furnish Congress "a report detailing
the number of times since January 1993 that the Department of Justice
has inspected the records of any producer of materials regulated".
Several months late, it now looks like the Justice Department has
provided Congress with the obvious answer, that no inspections have
taken place, and it has dressed the report up with the proposal for
changed regulations, quite possible as a matter of political cover. The
proposed changes can be read
and
downloaded here.

Updated June 17, 2004. Joe Obenberger
quoted regarding proposed time, place and manner restrictions on adult
entertainment in Buffalo Grove. The Daily Herald, June 17, 2004.

Updated May 2, 2004. On Friday, April 23,
2004 the Provincial Court of British Columbia in Vancouver acquitted
Randy Price in all 20 counts related to the making and distribution of
obscene materials, chiefly of a BDSM nature. This is the "Sweet case".
Under Canadian practice, the Crown (the prosecutors) may appeal, and it
apparently plans to do so. Hearty congratulations to the capable
defense team is in order. Sweet's lawyers presented a massive defense
case, profiling the BDSM scene in Canada, the wide availability of BDSM
materials in Canada and on the world wide web. (They brought a
broadband connection into the courtroom, accessed google, searched for
BDSM, and showed the Judge the apparently broad scope of interest,
tolerance, and acceptance of the material.) Additionally, expert
testimony was offered as to the reduction in violent sexual offenses in
the US and Canada since Internet adult content took off, and they also
highlighted the aggressive themes of mainstream cinema, including The
Texas Chainsaw Massacre. A copy of the (very detailed) 25-page order,
highlighting the evidence, is in our possession and is available for
our clients.

Updated May 2, 2004. We've posted a transcript
of Joe Obenberger's August 11, 2003 Fox appearance on "The O'Reilly
Factor" dealing with the federal obscenity prosecution of Extreme
Associates, and the rational of obscenity laws in general.

Updated May 2, 2004. Regarding the
continuing debate - and unresolved issue - of what "contemporary
community standards" are to apply to Internet publication, an issue
definitely present in the government's mind in the Extreme Associates
case, we have
prepared a table comparing and contrasting the opinions of
each of the members of the Supreme Court so that you may yourself view
where each stands on "Community Standards".

Updated January 16, 2004. Defense Motion to
Suppress Granted in Mike Jones criminal obscenity case. I am delighted
to report that Circuit Court Judge Sharon Prather this afternoon
granted our defense
motion to suppress all evidence obtained and
deriving from the search warrant executed against Mike Jones of
L&M Enterprises (and founder of CD Babes) on October 28, 2000.
As you probably know, Mike was indicted for obscenity and child
pornography in 2001. Judge Prather found that the search warrant
violated the First and Fourth Amendments because it authorized a
"general search" for obscene and underage materials in the home and
studio of Mike Jones, that it lacked particularity that might direct
and limit the officers as to what they were to seize, that the search
itself devolved into a constitutionally impermissible "general search"
(in other words, a fishing expedition) and that it amounted to an
improper prior restraint on speech without adequate judicial oversight.
A copy of the Brief in support of the motion can be downloaded here in
Acrobat format.

Updated January 16, 2004.adultinternetlaw.com
joins xxxlaw. Please visit our new (at least
new to us!) site: Richard J. Chapo and Greg Geelan
transferred adultinternetlaw.com
to this firm in late 2003. Our plan at
present is to maintain that site as a brass-tacks "business law of the
adult internet" site and to retain the valuable articles it contains
written by those two experts. We plan to keep our more topical legal
news, cases, statutes, and political and Libertarian-oriented essays on
these pages.

Updated July 18, 2002. xxxlaw® Links Page
revamped with new and comprehensive listings for websites devoted to
Liberty, Freedom of Speech, Privacy, Constitutional Government, Freedom
of Information Act, Adult Industry News, Webmaster Resource Boards, and
many other areas of interest to Internet and Adult Industry
professionals and students.

Updated October 25, 2002. Attorney General
Ashcroft Gearing Up Justice Department for Prosecution of Adult
Obscenity, Including Internet sites. The Justice Department convened a
National Obscenity Law Enforcement Conference at a DOJ facility, the
National Advocacy Center in Columbia, South Carolina, on June 6-7,
2002, to map a policy and guidelines for the prosecution of materials,
including online materials, described as "obscene". On May 7, Mr.
Ashcroft transmitted an invitation to all 94 US Attorneys under his own
signature, stating, "[T]he proliferation of obscenity, both via the
Internet as well as through more traditional channels, has become a
pervasive and destructive element in our society. I am committed fully
to dedicating the resources necessary to combat this burgeoning
problem." Mr. Ashcroft himself spoke to the gathering on June 6, 2002,
asserting that the adult industry has ties to organized crime and
invoking the right of the nation to "maintain a decent society." A full
report of these and other related matters, including links to source
documents, is running currently in AVN Online's online edition under
the name Just
Speaking Freely in Montreal: The Words of the Prophets. We
believe this article to be mandatory reading for everybody who makes a
living in adult erotic materials in online, video, and print media.
Current clients have been provided our 24-hour pager numbers in the
event of any legal emergency. UPDATE: "The Words of the Profits"
appears in the October, 2002 print edition of AVN ONLINE.

must be protected from the government

because speech is the beginning of thought."

May 13, 2002. United States Supreme Court
issues long-awaited decision on COPA in Ashcroft
v. ACLU, A majority of
the Court agreed that the statute is not unconstitutionally overbroad
just because it relies on a notion of "community standards" in some
sense, it preserved the existing injunction against enforcement of
COPA, and remanded the case for further consideration of whether COPA
is unconstitutionally overbroad or vague or otherwise infirm when that
statute is examined in view of all of its provisions and in light of
their cumulative effect on expression. The issue of how and whose
community standards ("national" v. "local geographic" v. undefined) can
fairly be applied to Internet prosecutions has not been squarely
answered by a majority of the Court in this case: A majority of the
members of the Supreme Court did not join Mr. Justice Thomas in Part
III of the opinion, which would apply the standards of local
geographic/political "communities". We have prepared a table comparing
and contrasting the opinions of each of the members of the Supreme
Court so that you may yourself view where each stands on "Community
Standards". Justice Thomas's view, that if a speaker does not wish to
incur criminal liability under the varying standards, he or she should
avoid using the Internet or other national means of expression, did not
obtain support from the majority of the Court. A three-member plurality
of the Court would apply "local" geographic community standards to the
Internet in determining what material is "harmful to minors" and
apparently what is obscene as well. Six members of the Supreme Court
oppose applying such local standards. The lack of majority support for
Part III of the Opinion leaves open many further possibilities as this
and other cases continue to be litigated and decided and stands as a
hallmark of the Opinion. This case is available in Adobe Acrobat™
format for reading and download here.

May 13, 2002. The United States Supreme
Court reverses and remands CITY OF LOS ANGELES v.
ALAMEDA BOOKS, INC.
The decision clarifies the burden municipalities must bear in
justifying their "time, place, and manner" regulations imposed upon
adult land use restrictions when those restrictions are challenged in
court. It broadly expands the playing field on which the adult operator
can engage and challenge the factual predicate for the land use
restriction, and this can only be good news for all adult entertainment
and expression. This case is available in Adobe Acrobat™ format for
reading and download here.

April 16, 2002. United States Supreme Court
declares the "Virtual Child Porn" Provisions of the Child Pornography
Protection Act to be unconstitutional. This Opinion sustains the Ninth
Circuit ruling in Ashcroft v. Free Speech Coalition;
In doing so, the
High Court highlights the distinction between the legitimate power of
government to regulate conduct and an impermissible attempt to regulate
thought and ideas.This well-written, significant 6-3 First Amendment
Opinion is available in Adobe Acrobat™ format here together with the
concurrence and dissents.

Tom Hymes at AVN Online displays
uncharacteristically discerning judgment in his review of the Newbie
Legal Seminar at Internext 2002-A . This is a classic must-read. "The
Dream Team", April, 2002.

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NOTE:
It should be obvious that the information and opinions set out above do
not create an attorney-client relationship, they do not amount to legal
advice, and if you have a legal issue, you should hire an attorney. You
should never obtain any legal information from a public web site and
make important decisions based on what you read online. All
of
this is set out to generally inform the public and, we hope, to reach
those who are responsible for making, interpreting, and enforcing the
law, for the purpose of enacting reasonable and just laws and of
enforcing them in a fair and reasonable manner consistent with such
traditional American values as Freedom of Speech, individual Liberty,
personal privacy, and fair dealing under the Due Process Clauses of the
Fifth and Fourteenth Amendments.

We invite you to contact us
via email or
by phone
- (312) 558-6420 - at the Law Offices of J. D. Obenberger and
Associates,
subject to all the fine
print
you'll find here. In any crisis, you can contact us 24/7. If you are an
established client of this office in the midst of an actual crisis, we
will actually answer the phone even at crazy times. Ask our clients.
Please be sure to read the Fine
Print.